MN, R (on the application of) v Secretary of State for Justice

Article 2 does not require every investigation into a near suicide causing life-changing injury to begin as a public inquiry with compulsory powers. The investigation must be effective, independent, prompt, sufficiently scrutinised publicly and involve the next of kin as necessary. The appropriate procedure is fact-sensitive.

Unless the circumstances already demonstrate a need for a public hearing or compulsory powers, the independent investigator may assess the evidence first and recommend any expansion of the investigation. That approach does not unlawfully fetter the investigator or remove the court’s supervisory jurisdiction. A challenge may arise if a reasonable recommendation is later refused.

The claimant, a prisoner who suffered life-threatening and potentially permanent injuries following an apparent suicide attempt, challenged the Secretary of State’s arrangements for an independent Article 2 investigation.

He argued that the investigation should include public hearings and powers of compulsion from the outset, that the investigator’s discretion had been unlawfully fettered, and that his and his family’s participation would be inadequate. The Secretary of State relied on the investigator’s ability to recommend further measures once familiar with the evidence.

The court considered whether permission should be granted for judicial review of those arrangements.

1. Permission refused. None of the six grounds was arguable, and no wider issue of public importance arose.

2. The Article 2 investigative duty requires an investigation initiated by the state, conducted promptly and independently, effective, subject to sufficient public scrutiny, and involving the next of kin to the extent necessary to safeguard legitimate interests. The level of scrutiny and participation is fact-specific and flexible.

3. A public hearing with compulsory powers is not required automatically in every near-suicide case involving serious or lifelong injury. Each case turns on its facts. The independent investigator is generally better placed to decide, after becoming familiar with the issues, whether a public hearing is required and what form it should take.

4. The commission letter did not unlawfully fetter the investigator. Its examples—serious conflicts in evidence, a need to test credibility publicly, and convincing evidence of widespread or serious systemic failures—were consistent with the guidance in JL. Nor was it unlawful for the investigator to make recommendations rather than possess such powers immediately. The Secretary of State was expected to accept a proper recommendation; unreasonable refusal could give rise to a public law claim.

5. Article 2 did not require the claimant’s family to be present whenever evidence was taken. Nor did it require compulsory powers, statements or document-production powers at the outset where there was no evidence that witnesses would refuse to co-operate. The investigator could request powers under the Inquiries Act 2005 if co-operation proved inadequate.

6. The court retained supervisory jurisdiction. Leaving the initial assessment to the investigator was not an impermissible “wait and see” approach, but followed the guidance that the investigator should determine the investigation’s appropriate scope after considering the facts.

The judgment concerned renewal of an application for permission to apply for judicial review. Permission had previously been refused by Roger ter Haar KC sitting as a Deputy High Court Judge on 27 September 2023. The renewed application was refused by the Administrative Court.